On June 24, 2015, three siblings were ordered by a judge in Michigan to be sent to a juvenile facility for refusing to maintain cordial relationship with their abusive father. Both the mainstream and social media were abuzz with condemnation of this judicial excess which could easily jeopardise their future. Within a fortnight the judgment was reversed and the kids were sent to a summer camp instead.
In India, however, such excesses or oversights are commonplace especially in the case of trafficked children. Gaping holes in the existing system of home enquiry lead to inaccurate assignations on the part of courts and concerned agencies.
In the wake of the government's nod to amending the Child Labour (Prohibition and Regulation) Act of 1986, a lot has been discussed about ensuring that children remain away from labour and complete their education. The Supreme Court too last week asked the National Legal Services Authority (NALSA) to file a report on measures to curb child trafficking and ensure the rehabilitation of victims. However, hardly any attention has been paid to the processes that facilitate return of the trafficked and enslaved children to a life of dignity.
As per the government statistics and ILO reports, more than 10 million children and adolescents are engulfed in bonded or forced labour, even under hazardous work conditions, and prostitution. Along with the rescue missions on a war footing it is imperative to highlight the lacunae in the existing home enquiry processes that often put victims in danger of being re-trafficked.
Home enquiries are conducted in a plethora of circumstances including adoption, determination of caste/tribe claims by Vigilance Cells, determination of custody of child, and restoration/re-integration of victims trafficked into bonded or other forms of labour, sexual exploitation, servitude etc. In order to assist Child Welfare Committees (CWC) or Magistrates, who determine whether the victim should be institutionalised or restored to family, it is critical that this assessment be undertaken with the utmost seriousness. All possible vulnerabilities that occasioned the trafficking at the first instance should be taken into account. Ideally, this report should be penned by an independent social worker or voluntary organisation and efforts must be made to provide the CWC or the court with objective information regarding the respective home conditions of the victim.
Despite constitutional mandates (JJ Act, 2000 Sec 33 and ITPA, 1956 Sec 17) and guidelines provided by certain policy instruments and protocols drafted by committees and experts, in practice these reports rarely capture information beyond the actual physical existence and location of the victim's home. This proves detrimental to the victim's proper rehabilitation and increases the risk of re-trafficking as orders are passed without sufficient information at the court or CWC's disposal. There is an urgent need to streamline and standardise this process and those undertaking this key task need to be trained well for strict implementation.
Need for diligence
An ideal home verification report should be carefully worded on the basis of diligently filled intake sheets. It should capture the community's attitude to prostitution, child labour etc. Even body language of the family members at the time of interaction deserves to be captured in the report since a direct line of questioning may not adduce necessary facts required to determine the nature of companions and their influence on the victim.
The procedure must allow sufficient time for gaps in information gathering and follow-up visits to tackle trust deficit as well as tutored false information. The social worker should endeavour to collect multiple documents required for a single purpose to accommodate the possibility that sometimes documents are manipulated, especially when the family is involved in trafficking.
It is important, however, not to alienate the parents or immediately dismiss them as unfit given that the law specifically contemplates their involvement during the formulation of the care plan. There is a tendency among voluntary agencies to sit in moral judgment instead if restricting themselves to verifying the steps taken by the parents to retrieve the child.
The home enquiry report can prove vital in courtroom proceedings. Unless relevant points are extensively recorded, the home study report cannot be effectively used in court to contest the parents challenging the CWC order declaring them unfit to retain custody of the child.
In case of certain vulnerable communities such as the Mahadalits, Bedia and Nats, parents might be willing to receive the child and school her but social ostracism and exclusion denies her these avenues. Socio-political influences, therefore, need to be recorded in the home enquiry report. A vulnerability impact assessment should be undertaken in any large scale incidence of trafficking from within a community or geographic area. The home enquiry report needs to record the same. It is also beneficial to ascertain the family's access to government benefits and social welfare schemes which will help in designing the individual care plan for rehabilitation.
Certain vital information set out in the home enquiry report format (Form XIII), JJ Rules, requires ascertainment of mental state of the victim which is best done by a counsellor/child psychiatrist. It is also imperative that shelter home staff be notified of all mental and physical health issues of the child rather than seeking to get her admitted through deception.
Extra care for foreign victims
Home enquiry takes on added dimensions when foreign victims of trafficking are involved. They are often scared that any statement they make will land them in trouble with authorities. The observations of the NGO doing the home enquiry impact the decision to repatriate. Therefore, if it is found that conditions are not conducive or victims show great reluctance to return to their home country, civil society should advocate that provisions of Palermo Protocol be observed. This is often not the position espoused by the government, causing endless hardship to the victim.
Clearly, mere physical verification of existence of the victim's home does not meet the objectives of the lawmakers. For ensuring that the victim is not re-trafficked or left vulnerable, thereby subverting the purpose of the entire exercise of rescue and restoration, it is crucial that home enquiry be accorded utmost priority. Sensitisation of personnel involved in the process as well as training and capacity building is to be prioritised as a joint effort of government and NGOs.
(Nishtha Gautam is an Associate Fellow at Observer Research Foundation while Debdatta Dobe is Legal and Policy Researcher at Justice and Care)
Courtesy: The Wire
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